Conscience v. Conscience?

Regulation 45 CFR Part 147 (2011)

CLR Forum
Center for Law and Religion at St. John's University School of Law
3 December, 2011
Reproduced with permission

Marc O. DeGirolami*

Here is a view in the Guardian that is representative of a growing swell of opinion against the policy wisdom of granting exemptions for conscience reasons to religious institutions. I want to ask a question about one feature of the argument which one frequently hears in these discussions:

"Why should the conscience of an employer trump a woman's conscience?" Illinois Democratic Representative Jan Schakowsky asked in a statement. "Why should an employer decide for a woman whether she can access healthcare services that she and her doctor decide are necessary? Why are we talking about allowing some employers to put up a barrier to access at a time when women are struggling afford and access healthcare?"

Indeed, what Rep Schakowsky asks is of vital importance. This isn't just an issue of separating church and state, or of being forced to define what constitutes religious affiliation, doctor-patient privacy or a public health matter. If President Obama sides with the Catholic leaders demanding the exemption, his decision would directly impact the lives of millions of poor Americans already struggling in the recession.

It seems to me that this argument is confused, even if extremely popular and demagogically effective. The right question is not whether the religious institution's conscience should "trump" the individual's conscience. If the health care law contains an exemption for religious employers, the individual woman is not being prevented from obtaining contraceptive services. She is only losing the power to compel her religious employer (for whom, one should expect, she agreed to work voluntarily) to pay for her contraceptive services. On the other hand, if there is no exemption, the religious employer is being compelled to provide contraceptive services, in direct violation of its beliefs. What is of "vital importance" is the failure of so many people to recognize this distinction.

Discussion continues . . .